Re: [ga] New TLD White Paper released
Title: Question for the professionals: Does it make a difference that the ccTLD community, ICANN and the GAC operate based on the principle stated in RFC 1591 which says: "These designated authorities (i.e. the ccTLD manager) are trustees for the delegated domain, and have a duty to serve the community. The designated manager is the trustee of the top-level domain for both the nation, in the case of a country code, and the global Internet community."If they are trustees, the beneficiaries appear to be the nation (state?) for a ccTLD. Equitable ownership? Regards, - ramesh - Michael Froomkin - U.Miami School of Law wrote: I am afraid you are confusing national law and international law (and international public law with international private law). What you have written is (sort of, in a very basic and oversimplified fashion) the rule for national law. But national law does not (much) extend beyond the state's borders. Public International law is quite different. Simplifying, the sources of international are broadly considered to be those found in Article 38 of the statute of the international court of justice (cf. http://www.un.org/Overview/Statute/chapter2.html), to wit: <blockquote> a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. </blockquote> I cannot prove to you a negative, but I have searched high and low -- I am writing an article about this very issue -- and it is my contention to you that not a single one of these four sources exists to support the proposition that a state "owns" the ccTLD whose TLD is identical to the ISO country code associated with that state as a matter of public international law. [It cannot be international private law as there is neither treaty nor contract to support this claim.] Note, in this context, that the ISO is itself a private body. If the matter is so obvious, surely someone could come up with a citation prior to the GAC's declaration that this rule was already a fact? Of course, a state that does not already control its cognate ccTLD could apply its national rules to take the ccTLD from its domiciliary [since the delegee of the ccTLD must be resident]. In the absence of some principle of public international law lodging the ownership of the ccTLD in the state a priori, the state must do this act in conformity with its own rules: in some places that means it can expropriate at will, in others it could threaten to torture the delegee, but in still others it may have to follow due process and/or offer compensation. The significance of the debate we are having is that, were it the case that there were an existing rule of public international law which stated that ownership of the ccTLD was (always?) (inalienable?) vested in the state, even a civilized state would not need to observe domestic due process, and would never need to provide compensation, but could simply take the ccTLD directly. There are indeed rights here, but they are rights that sound in international private law: the rights of the ccTLD delegate to the quiet enjoyment of his agreement with IANA during good behavior without interference from outsiders to the relationship. I hope this has helped you understand why you have used false premises to reason to an incorrect conclusion. On Mon, 24 Mar 2003 eric@hi-tek.com wrote:
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